Barone v. City of Dunkirk

47 A.D.2d 592, 363 N.Y.S.2d 688, 1975 N.Y. App. Div. LEXIS 8694

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1975
• Status: Published

Opinion

Judgment unanimously modified by deleting the provision granting petitioner affirmative relief, motion denied, without costs, and respondents granted leave to serve and file an answer within 10 days after service of the order herein with notice of entry. Memorandum: Respondents appeal from a judgment setting aside and vacating the decision of the Common Council of the City

of Dunkirk suspending petitioner and directing them, to restore him to his official duties in the Police Department with back pay. Petitioner commenced this article 78 proceeding to vacate the determination of the council and respondents moved for an order dismissing the petition because of an objection in point of law. The court denied respondents’ motion to dismiss and granted petitioner affirmative relief before respondents had an opportunity to serve their answer, by directing respondents forthwith to restore petitioner to his position with full reimbursement for lost wages. In accordance with the provisions of the statute (CPLR 7804, subd. [f]), upon the denial of respondents’ motion to dismiss, affirmative relief should not have been granted petitioner before permitting respondents to answer (Matter of Sibarco Stations v. Risman, 34 A D 2d 890). (Appeal from judgment of Erie Special Term in article 78 proceeding to annul suspension.) Present — Marsh, P. J., Cardamone, Mahoney, Del Vecchio and Witmer, JJ.